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Reynolds v. State

Supreme Court of Florida

April 5, 2018

MICHAEL GORDON REYNOLDS, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

          An Appeal from the Circuit Court in and for Seminole County, Kenneth R. Lester, Jr., Judge - Case No. 591998CF003341A000XX

          James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Julissa R. Fontán, Maria E. DeLiberato, and Chelsea Shirley, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Doris Meacham, Assistant Attorney General, Daytona Beach, Florida, for Appellee.

          PER CURIAM.

         This case is before the Court on appeal by Michael Reynolds from an order denying a motion to vacate sentences of death under Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from sentences of death, this Court has jurisdiction under article V, section 3(b)(1), of the Florida Constitution. For the reasons explained below, we affirm the circuit court's denial of relief.

         FACTUAL AND PROCEDURAL BACKGROUND

         We detailed the underlying crimes in Reynolds's direct appeal. Reynolds v. State (Reynolds I), 934 So.2d 1128, 1135-39 (Fla. 2006). For the purposes of this proceeding, it is relevant that Reynolds was convicted for the first-degree murders of Robin and Christina Razor, along with the second-degree murder of Danny Privett and the burglary of a dwelling with armed battery. Id. at 1135.

         At the penalty phase, Reynolds waived his right to present mitigating evidence. Outside the presence of the jury, Reynolds was advised of his right to present mitigation evidence, but he waived that right after conferring with counsel at length. Moreover, the trial court conducted a thorough colloquy to ensure that Reynolds understood the rights that he was waiving and even recessed for one day, giving Reynolds the opportunity to fully consider his decision. Reynolds v. State (Reynolds II), 99 So.3d 459, 493-97 (Fla. 2012). Concerning his waiver, Reynolds explained his decision:

I don't want to present a mitigating case here because there's no such thing. I mean, Your Honor, it's a waste of time because I have [no mitigators]. I've been locked up all my life.
. . . I have no mitigating, I have nothing that's gonna dictate against my record, and I know that the final outcome of this is that I'm gonna go to death row, and I would wish, if you would, and if y'all would honor that and please let me get this done and get up the road. And that's about the best way I can say it, Your Honor. I'm ready to go.

Id. at 493-94 (alteration in original). Trial counsel swore in an affidavit that Reynolds waived mitigation, "at least in part, because he did not think there was any chance of convincing six jurors to vote for life, and did not want to subject his sisters to the stress of testifying before a jury."

         In a pretrial motion, Reynolds moved for the use of a special verdict form containing jury factfinding on aggravation. The trial court denied that motion. Moreover, in reading the instructions, the trial court informed the jury that "the final decision as to what punishment shall be imposed is the responsibility of the judge." Yet, the trial court explained that it could reject their advisory recommendation "only if the facts [were] so clear and convincing that virtually no reasonable person could differ." The trial court also informed the jury that "the law require[d] the court to give great weight" to the recommendation.

         After deliberation, the jury unanimously recommended death on each count of first-degree murder.

         At a Spencer[1] hearing, trial counsel filed mitigation with the trial court that it would have presented at the penalty phase-absent Reynolds's waiver of that right. The trial court conducted the Spencer hearing. As a result, the trial court found the following aggravators proven beyond a reasonable doubt and afforded great weight to each: for the murder of Robin Razor, the trial court found four aggravators-(1) Reynolds's previous conviction for another capital felony or felony involving use or threat of violence to a person; (2) Reynolds committed the murder while engaged in, or the accomplice to, or attempting to commit, a burglary; (3) the murder was committed for the purpose of avoiding a lawful arrest; and (4) the murder was especially heinous, atrocious, or cruel (HAC)-and for the murder of Christina Razor, the trial court found the same four aggravators, along with a fifth aggravator-the victim of the murder was a person less than twelve years old. On each count of first-degree murder, the trial court found the existence of four statutory mitigators and afforded little weight to each: (1) Reynolds was gainfully employed; (2) Reynolds manifested appropriate courtroom behavior; (3) Reynolds cooperated with law enforcement; and (4) Reynolds had a difficult childhood, including various subparts.[2] In accordance with Muhammad v. State, 782 So.2d 343 (Fla. 2001), the trial court did not afford great weight to the unanimous jury recommendation because the jury did not hear the mitigation.[3] After weighing the substantial aggravation against the minimal mitigation, the trial court sentenced Reynolds to death for the murders of Robin and Christina Razor.

         Reynolds appealed his convictions and sentences to this Court, and we affirmed. Reynolds I, 934 So.2d at 1161. His petition for writ of certiorari was denied by the United States Supreme Court on January 8, 2007. Reynolds v. Florida, 549 U.S. 1122 (2007). Pursuant to Florida Rule of Criminal Procedure 3.851, Reynolds filed his initial motion for postconviction relief, raising several claims. After an evidentiary hearing, the circuit court denied each claim, which we affirmed along with denying his petition for writ of habeas corpus. Reynolds II, 99 So.3d at 501.

         Following Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), cert. denied, 137 S.Ct. 2161 (2017), Reynolds filed the instant successive motion to vacate his sentences of death. After a case management conference on March 2, 2017, the circuit court denied Reynolds's successive motion in a subsequent written order.

         This appeal follows.

         ANALYSIS

         In this successive postconviction motion, Reynolds raises two claims: (1) his death sentences violate the Sixth Amendment in light of Hurst and Hurst v. Florida, 136 S.Ct. 616 (2016); and (2) his death sentences violate the Eighth Amendment under Caldwell v. Mississippi, 472 U.S. 320 (1985), and must be vacated in light of Hurst, Hurst v. Florida, and Perry v. State, 210 So.3d 630 (Fla. 2016). These issues present purely legal questions, which we review de novo. E.g., Mosley v. State, 209 So.3d 1248, 1262 (Fla. 2016).

         Sixth Amendment Hurst Claim

         Reynolds contends that the circuit court erred in denying his successive motion for postconviction relief pursuant to Hurst under the Sixth Amendment.

         Reynolds's death sentences became final when the Supreme Court denied his writ of certiorari on January 8, 2007. Reynolds v. Florida, 549 U.S. 1122. Because the sentences became final after Ring v. Arizona, 536 U.S. 584 (2002), Hurst applies retroactively to this case. E.g., Mosley, 209 So.3d at 1274-83 (applying Hurst retroactively to a post-Ring, postconviction defendant). In Hurst, we held "that in addition to unanimously finding the existence of any aggravating factor, the jury must also unanimously find that the aggravating factors are sufficient for the imposition of death and unanimously find that the aggravating factors outweigh the mitigation before a sentence of death may be considered by the judge." 202 So.3d at 54. Further, we concluded that Hurst error is capable of harmless error review. Id. at 66-68; see, e.g., King v. State, 211 So.3d 866, 889 (Fla. 2017). Accordingly, we must decide whether Reynolds's Hurst error was harmless beyond a reasonable doubt. E.g., Davis v. State, 207 So.3d 142, 174 (Fla. 2016).

         In Hurst, we explained our standard for harmless error review:

Where the error concerns sentencing, the error is harmless only if there is no reasonable possibility that the error contributed to the sentence. Although the harmless error test applies to both constitutional errors and errors not based on constitutional grounds, "the harmless error test is to be rigorously applied, " and the State bears an extremely heavy burden in cases involving constitutional error. Therefore, in the context of a Hurst v. Florida error, the burden is on the State, as the beneficiary of the error, to prove beyond a reasonable doubt that the jury's failure to unanimously find all the facts necessary for the imposition of the death penalty did not contribute to Hurst's death sentence in this case. We reiterate:
The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact.
"The question is whether there is a reasonable possibility that the error affected the [sentence]."

202 So.3d at 68 (citations omitted) (alteration in original) (quoting State v. DiGuilio, 491 So.2d 1129, 1137-38 (Fla. 1986)).[4] Under this standard, our harmless error analyses in the wake of Hurst have varied due to the individualized, case-by-case approach. However, we have conducted these analyses within the same general framework described below.

         Preliminarily, we look to whether the jury recommendation was unanimous. See, e.g., Kaczmar v. State, 228 So.3d 1, 9 (Fla. 2017); Jones v. State, 212 So.3d 321, 343-44 (Fla. 2017); King, 211 So.3d at 890; Davis, 207 So.3d at 174-75. Here, the jury recommendation was unanimous. Although Reynolds's jury was instructed that it was "not necessary that the advisory sentence . . . be unanimous, " it nonetheless returned two unanimous death sentences. See Davis, 207 So.3d at 174-75. Reynolds attempts to analogize his case to nonunanimous decisions such as Johnson v. State, 205 So.3d 1285 (Fla. 2016). That comparison falls flat. We have been abundantly clear that there is a critical distinction between unanimous and nonunanimous jury recommendations as they pertain to Hurst error. E.g., Davis, 207 So.3d at 174 ("[W]e emphasize the unanimous jury recommendations of death."). Therefore, Reynolds's case is fundamentally different from any nonunanimous cases where Hurst relief was appropriate.

         Yet a unanimous recommendation is not sufficient alone; rather, it "begins a foundation for us to conclude beyond a reasonable doubt that a rational jury would have unanimously found that there were sufficient aggravators to outweigh the mitigating factors." King, 211 So.3d at 890. Hence, we look to other factors such as the jury instructions. Kaczmar, 228 So.3d at 9; King, 211 So.3d at 890-91; Davis, 207 So.3d at 174-75.

         A review of the record reveals that the trial court instructed Reynolds's jury using Florida Standard Jury Instruction (Criminal) 7.11. We have rejected similar Hurst claims where defendants received Standard Jury Instruction 7.11. Kaczmar, 228 So.3d at 9; Knight v. State, 225 So.3d 661, 682-83 (Fla. 2017); Davis, 207 So.3d at 174. Moreover, a review of Kaczmar, Knight, and Davis demonstrates that the critical instructions given in those cases were similar to those given here. The trial court here instructed the jury, "It is your duty to . . . render to the court an advisory sentence based upon your determination as to whether sufficient aggravating circumstances exist to justify the imposition of the death penalty and whether sufficient mitigating circumstances exist to outweigh any aggravating circumstances found to exist." See Davis, 207 So.3d at 174 ("The instructions that were given informed the jury that it needed to determine whether sufficient aggravators existed and whether the aggravation outweighed the mitigation before it could recommend a sentence of death."). Even though Reynolds's jury was instructed that unanimous recommendations were not required at that time, the jury still returned two unanimous death sentence recommendations, similar to the circumstances that we upheld in Kaczmar, Knight, and Davis. See Knight, 225 So.3d at 683 ("Knight's 'jury was not informed that the finding that sufficient aggravating circumstances outweighed the mitigating circumstances must be unanimous, and . . . the jury did, in fact, unanimously recommend death.' " (quoting Davis, 207 So.3d at 174-75) (alteration in original)).

         Absent from Reynolds's jury instructions was a mercy instruction, which we used to support our harmless error conclusions in Davis and Kaczmar.[5]Nevertheless, we have held that the failure to give a mercy instruction alone does not necessarily make a Hurst error harmful. Knight, 225 So.3d at 683 ("[T]he Davis jury 'was instructed that it was not required to recommend death even if the aggravators outweighed the mitigators, ' while Knight's jury was not. Nonetheless, we believe that Knight's jury received substantially the same critical instructions as Davis's jury." (citation omitted)). Moreover, in his briefs, Reynolds fails to mention that the mercy instruction was not added to Standard Jury Instruction 7.11 until October 2009-before Davis and Kaczmar's penalty phases but after Reynolds's penalty phase in 2003. In re Std. Jury Instr. in Crim. Cases-Report No. 2005-2, 22 So.3d 17, 22, 35 (Fla. 2009); Davis, 207 So.3d at 155 (penalty phase in 2011); Kaczmar, 228 So.3d at 6 (second penalty phase in 2013). For these reasons, and in accordance with our decisions in Davis, Kaczmar, and Knight, we can conclude that Reynolds's "jury unanimously made the requisite factual findings to impose death before it issued the unanimous recommendations." Davis, 207 So.3d at 175.

         Next, we review the aggravators and mitigators. See King, 211 So.3d at 891-92; Davis, 207 So.3d at 175. Before doing so, however, there is an important distinction between this case and Davis that must be addressed: Reynolds waived his right to present mitigation, while Davis did not. At first blush, this may appear problematic, but we have concluded that a defendant's waiver of the right "to present mitigation to the jury during the penalty phase has no bearing" on a cognizable Hurst claim. Jones, 212 So.3d at 343 n.3. In Jones, we reasoned that the refusal to present mitigation could not give rise to a subsequent Hurst claim:

As previously stated, Jones's waiver of that right was valid, and he "cannot subvert the right to jury factfinding by waiving that right and then suggesting that a subsequent development in the law has fundamentally undermined his sentence." Mullens v. State, 197 So.3d 16, 40 (Fla. 2016), cert. denied, 137 S.Ct. 672 (2017).

Id. Following the reasoning of Mullens, Reynolds-similar to Jones and Mullens-waived his right to jury factfinding on mitigation under the Sixth Amendment. Because he waived that right, he cannot now claim a harmful error for the lack of jury factfinding that he knowingly waived. See Mullens, 197 So.3d at 40. Prior to Reynolds's penalty phase, trial counsel, along with the trial court, attempted to influence Reynolds to reverse his decision and ensured that he was examined by a mental health expert. Reynolds II, 99 So.3d at 485 n.9, 493-94. Nonetheless, Reynolds chose to waive his right to present mitigation because he considered it a "waste of time" as he had no mitigation. Id. at 493. Reynolds now claims that his decision was the result of his belief that he could not convince six jurors to vote for life and, as trial counsel noted, Reynolds's desire not to "subject his sisters to the stress of testifying before a jury." Yet the reason that Reynolds waived mitigation is not pertinent to this analysis under Mullens and Jones. Instead, the dispositive fact concerning Reynolds's waiver is that he knowingly and intelligently waived his right to jury factfinding on mitigation. See Mullens, 197 So.3d at 39-40 ("[W]e fail to see how Mullens, who was entitled to present mitigating evidence to a jury as a matter of Florida law even after he pleaded guilty and validly waived that right, can claim error.").

         Also, there was not a complete absence of mitigation. Despite his waiver, the trial court considered Reynolds's limited mitigation. As a result, the trial court found four mitigators and afforded little weight to each. Furthermore, Reynolds's waiver was factually less problematic than other waivers that we have upheld. For instance, in Kaczmar, a jury returned an eleven-to-one recommendation for death after hearing mitigation. 228 So.3d at 5. However, a second penalty phase jury returned a unanimous recommendation on remand after the defendant waived mitigation. Id. at 6. Despite this fact, we found the Hurst error harmless and denied relief. Id. at 9. It follows that Reynolds's decision to waive mitigation does not constitute a per se harmful Hurst error. See Jones, 212 So.3d at 343 & n.3; Kaczmar, 228 So.3d at 9.[6]

         Turning back to the comparison between aggravators and mitigators, we have stated that "it must be clear beyond a reasonable doubt that a rational jury would have unanimously found that there were sufficient aggravating factors that outweighed the mitigating circumstances." Davis, 207 So.3d at 174. Here, there were four and five aggravators found in the murders of Robin and Cristina Razor, respectively. Although the trial court found certain mitigating factors, those circumstances could not have affected the jury because Reynolds waived presentation of mitigation to his jury. Even leaving aside the aggravators that could arguably require a factual finding by the jury, the aggravation here necessarily outweighed the mitigation. Consequently, there is no reasonable dispute as to whether the aggravation outweighed the mitigation, and the jury correspondingly returned death recommendations by twelve-to-zero votes.

         Finally, we look at the facts of the case. See King, 211 So.3d at 891-92. Here, as Privett relieved himself, Reynolds smashed his head with a cinder block. Reynolds I, 934 So.2d at 1135-36, 1157. Then, Reynolds proceeded to kill Christina and Robin Razor-an eleven-year-old girl and her mother-by beating and stabbing them to death because, in Reynolds's words, "with [his] record [he] couldn't afford to leave any witnesses." Id. The "egregious facts of this case" firmly buttress the conclusion that the Hurst error was harmless beyond a reasonable doubt. See, e.g., Davis, 207 So.3d at 175.

         Accordingly, we affirm and conclude that "this is one of those rare cases in which the Hurst error was harmless beyond a reasonable doubt." King, 211 So.3d at 890; see also Knight, 225 So.3d at 683; Davis, 207 So.3d at 175.

         Eighth Amendment Caldwell Claim

         Reynolds also contends that the circuit court erred in denying his successive motion for postconviction relief pursuant to Hurst under the Eighth Amendment. Specifically, Reynolds argues that his sentences violated the Eighth Amendment under Caldwell.[7] To date, we have not expressly addressed a Caldwell challenge to Standard Jury Instruction 7.11 brought under Hurst[8]; thus, we must determine if a legal basis exists for these types of "Hurst-induced Caldwell claims." We have labeled these as Hurst-induced Caldwell claims because that distills the essence of the challenge: Hurst and its progeny render the previous Standard Jury Instruction violative of Caldwell.[9]

         Relevant Legal Background

         As an introductory matter, it is necessary to review the jurisprudential development of this issue, which began in Florida long before Caldwell. In Blackwell v. State, 79 So. 731 (Fla. 1918), we held that it was reversible error for a prosecutor to make comments that "lessen [a jury's] estimate of the weight of their responsibility, and cause them to shift it from their consciences to the Supreme Court." Id. at 736. There, the prosecutor stated, "If there is any error committed in this case, the Supreme Court, over in the capital of our state, is there to correct it, if any error should be done." Id. at 735. Despite an objection, the trial court refused to correct that statement and expressly approved of it, which we reversed. Id. at 735-36. We noted that the "purpose and effect of this remark was to suggest to the jury that they need not be too greatly concerned about the result of their deliberation" because this Court would be waiting in the wings to correct any errors. Id.

         Years later, in Pait v. State, 112 So.2d 380, 383-86 (Fla. 1959), we reached a similar outcome on analogous facts. Among other statements, the prosecutor there told the jury, "This is the last time the People of this State will try this case in this court. Because whatever you do, the People have no right of appeal. They are done. This is their day. But he may have another day; he has an appeal." Id. at 383. We noted that the prosecutor's comment "incorrectly stated the law" and was a type of situation when a statement "so deeply implant[ed] seeds of prejudice or confusion that even in the absence of a timely objection at the trial level it [became] the responsibility of this court to point out the error" and reverse. Id. at 384. We concluded that it was impossible for us, as an appellate ...


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